There has been renewed interest in the introduction of a direct, comprehensive right to privacy in Australian law, with three law reform commissions recommending the enactment of a statutory cause of action for invasion of privacy. A comparatively neglected aspect of the proposed reforms is the interrelationship between defamation and privacy. The introduction of an enforceable right to privacy has the potential to subvert well-established principles of defamation law. This article examines in particular the availability of damages and interlocutory injunctions for defamation and privacy. It argues that damages for privacy should be capped but at a higher level than the cap on damages for defamation, reflecting the respective value Australian law should ascribe to the interests underlying these causes of action. It further argues that an interlocutory injunction should not be more readily available for invasion of privacy than for defamation.Rolph comments that
If plaintiffs are given the right to sue for invasion of privacy, which is properly understood as a dignitary interest, additional to the plaintiff‟s interest in his or her reputation, there arises the issue of what approach should be taken for the plaintiff to be able to obtain an interlocutory injunction for invasion of privacy. The issue of whether a plaintiff should be able to obtain an interlocutory injunction for invasion of privacy should not be considered in isolation; the impact on defamation law needs to be considered. If a plaintiff is able to obtain an interlocutory injunction for invasion of privacy, this may have a distorting effect on defamation law; it would provide an incentive for plaintiffs to recast claims previously brought as defamation claims as invasion of privacy claims, thereby subverting the restrictive approach to injunctive relief in defamation.
This raises difficult issues of principle. On the one hand, an argument can be made that defamation turns upon a dichotomy of truth and falsity, whereas invasion of privacy is concerned not with these matters but merely with whether something is private or not. On this analysis, it might be argued that the plaintiff should be able to elect whether to frame his or her claim in defamation or invasion of privacy, or both. On the other hand, historically the common law has treated defamation as the proper cause of action for false and derogatory statements. The concept of false privacy is a vexed one. The common law would have developed differently if the equitable cause of action for breach of confidence – the equitable cause of action which has been adapted to provide direct privacy protection in the United Kingdom – had extended to false information. United Kingdom courts are currently struggling with the concept of "false privacy" and its implications for the interaction of remedies for defamation and invasion of privacy.
Yet none of the law reform proposals consider the interaction between defamation and privacy. In particular, this important, practical issue is given no consideration. If a plaintiff was now able to elect to claim either defamation or invasion of privacy, he or she would have a real incentive to plead invasion of privacy in order to obtain an injunction that would not ordinarily be available in defamation. This would be a change to a long-standing practice. Its implications need to be considered before any reform is undertaken. One solution might be to have an award of damages as the principal remedy for invasion of privacy, just as it is for defamation, with an interlocutory injunction as possible but exceptional. If a new cause of action for invasion of privacy mirrored the position in relation to injunctive relief for defamation, there would be no incentive for plaintiffs to frame claims as invasions of privacy which would previously have been pleaded as defamation.
It might be argued that once a plaintiff‟s privacy has been invaded, it can never be restored. This is equally true of defamation. Although, in principle, a favourable defamation verdict acts to vindicate the plaintiff's reputation, the reality is, in many cases, very different. An award of damages for defamation is usually granted many years after the publication ofdefamatory matter – if a plaintiff does not settle first or if a plaintiff elects to sue in the first place. The fact of the defamation trial, with its repetition of the defamatory allegations, becomes part of the plaintiff‟s reputation, so that the sting of the defamation never completely dissipates. There is a disparity between the rhetoric and the reality of defamation law. Thus, reputation and privacy should not be treated so differently for the purposes of injunctive relief. If a plaintiff were aware that his or her privacy was to be invaded, he or she would probably want to obtain an injunction to restrain it. If a plaintiff were aware that his or her reputation was to be damaged, he or she would probably also want an injunction but the common law, as a matter of principle, has consistently refused to grant it. The common law has taken the view that the appropriate balance of interests between plaintiffs and defendants is that defendants may exercise freedom of expression but that if, in their exercise, they defame, they are liable for the consequences. If a cause of action for invasion of privacy is to be developed, it should not be allowed to disturb the balance of interests the law has struck in relation to defamation, at least not without proper consideration.